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People v. Borg

I. The Denial of Defendant’s Motion for Substitution of Counsel. 

            Defendant argues that the trial court erred by failing to conduct an adequate inquiry into the grounds for his request for substitution of counsel after trial.[3]  There are two aspects to defendant’s assertion of Marsden error: first, he was not afforded the opportunity to fully state his reasons for dissatisfaction with counsel before denial of the Marsden motion; and second, when counsel subsequently expressed to the trial court  that a motion for new trial would require him to “claim ineffective assistance of counsel,” the court erred by failing to conduct a further hearing.  Defendant maintains that the court’s failure to conduct an inquiry makes “meaningful appellate review impossible and results in denial of a fair trial.”  He asks that we reverse the judgment and remand the case to the trial court to conduct the requisite inquiry into the “allegations concerning counsel’s performance.”

            We will separately review defendant’s two claims of Marsden error in accordance with the “ ‘ “contours of the rule set forth in Marsden, supra, 2 Cal.3d 118,” ’ ” that are “ ‘ “well settled.  ‘ “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.  [Citation.]  A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’  [Citation.]” ’ ”  (People v. Vines (2011) 51 Cal.4th 830, 878.)  Marsden imposes four requirements” on the trial court: “First, if ‘defendant complains about the adequacy of appointed counsel,’ the trial court has the duty to ‘permit [him or her] to articulate his [or her] causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance.’  [Citations.]”  (People v. Mendez (2008) 161 Cal.App.4th 1362, 1367.)

            “[W]hen a defendant requests substitute counsel, ‘the standard expressed in Marsden and its progeny applies equally preconviction and postconviction.’ ”  (People v. Sanchez (2011) 53 Cal.4th 80, 88, quoting from People v. Smith (1993) 6 Cal.4th 684, 694.)  At “ ‘any stage of the trial’ ” a criminal defendant “ ‘must be given the opportunity to state reasons for a request for new counsel.’  [Citation.]”  (People v. Lopez (2008) 168 Cal.App.4th 801, 814.)  A defendant is entitled to bring a posttrial Marsden motion either for the purpose of sentencing or to bring a new trial motion.  (People v. Miller (2007) 153 Cal.App.4th 1015, 1024; People v. Winbush (1988) 205 Cal.App.3d 987, 991.)  In ruling on a postconviction Marsden motion, “the trial court must apply the same standard it would apply in ruling on a preconviction Marsden motion:  substitute counsel should be appointed when, ‘in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].’ ”  (People v. Johnson (2009) 47 Cal.4th 668, 673, fn. 2, quoting from People v. Smith, supra, at p. 696.)

            “After hearing from the defendant, a trial court is within its discretion in denying the motion unless the defendant establishes substantial impairment of his right to counsel.  [Citation.]  On appeal we review the denial for an abuse of discretion.”  (People v. Vera (2004) 122 Cal.App.4th 970, 979.)

A. The Inquiry into Defendant’s Motion for Substitution of Counsel After Trial.

            Defendant acknowledges that the court “conducted a Marsden hearing” when he voiced his dissatisfaction with counsel and enumerated the “evidence he felt should have been challenged . . . at trial,” but argues that the inquiry undertaken by the court was deficient.  He claims the court erred by encouraging defendant to “work with” his attorney on “a new trial motion,” and failed to properly grant him the opportunity to articulate “all of the reasons” in support of his request for a “new attorney.”

            The California Supreme Court has “pointed out that a trial court cannot discharge its duty without hearing the reasons for the defendant’s belief that his or her attorney has not afforded adequate representation.”  (People v. Martinez (2009) 47 Cal.4th 399, 417.)  Marsden “requires that a trial court ‘listen[ ] to [a defendant’s] reasons for requesting a change of attorneys.  [Citation.]’ ”  (People v. Gutierrez (2009) 45 Cal.4th 789, 804.)  “Accordingly, ‘When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate.”  (People v. Smith, supra, 6 Cal.4th 684, 690.)  “A trial court errs under Marsden by not affording a criminal defendant the opportunity to state all his reasons for dissatisfaction with his appointed attorney.  [Citations.]  On the other hand, a defendant is not entitled to keep repeating and renewing complaints that the court has already heard.”  (People v. Vera, supra, 122 Cal.App.4th 970, 980; see also People v. Hidalgo (1978) 22 Cal.3d 826, 827, fn. 1; People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.) 

            Here, defendant voiced his posttrial dissatisfaction with his attorney by complaining that counsel believed in his guilt and failed to accept his explanations of innocence.  The court allowed defendant to elaborate on the reasons for his displeasure with counsel.  Defendant criticized counsel for failing to offer specific evidence at trial: the testimony of a “handwriting expert” to prove that he did not write the entire note to Fuller; and the testimony of the Buffalo Exchange store manager, who was present and “didn’t see anything” when Fuller asserted that defendant “was masturbating” outside the premises.[4]  The court urged defendant to “work with” counsel to present any potentially exculpatory evidence in the context of a motion for new trial.  Defendant again protested that his attorney believed he “was guilty” and “resisted” his efforts to prove his innocence.  The court denied the motion without comment.

            We find that the trial court conducted a Marsden inquiry appropriate to the nature of the postconviction motion made by defendant.  In contrast to People v. Reed (2010) 183 Cal.App.4th 1137, 1144, relied on by defendant, this is not a case in which the court failed “to conduct any inquiry at all into the basis for his motion after he expressed his desire to move for a new trial on the basis of ineffective assistance of counsel.”  (See also People v. Mejia (2008) 159 Cal.App.4th 1081, 1086.)  The court afforded defendant an opportunity to state his grounds for dissatisfaction with the current appointed attorney, which included lack of trust in counsel and an interest in presenting evidence to challenge the verdict and support a new trial motion.  Defendant was not prevented from stating all of his reasons to support his assertion of inadequate representation or an irreconcilable conflict.  (People v. Sharp (1994) 29 Cal.App.4th 1772, 1787–1788.)

            The court also properly determined that defendant’s complaints with counsel’s previous performance at trial were subject to evaluation in a new trial motion, and substitution of counsel was not required.  Where, as here, the Marsden motion is made after trial, “the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future.  But the decision must always be based on what has happened in the past.”  (People v. Smith, supra, 6 Cal.4th 684, 695.)  “ ‘If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel.’  [Citation.]  The same standard of proof applies to a motion for substitute counsel made in the trial court whether it is made before or after conviction.”  (People v. Sharp, supra, 29 Cal.App.4th 1772, 1787.)

            Defendant did not demonstrate that either ineffective assistance of counsel or prejudice occurred at trial.  “ ‘New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.’  [Citation.]”  (People v. Reed, supra, 183 Cal.App.4th 1137, 1144–1145, fn. omitted.)  Because the Marsden motion was made after trial, “the only basis for the motion could be that counsel performed ineffectively during trial or could not adequately represent the defendant at sentencing.”  (People v. Reed, supra, at p. 1148, citing People v. Washington (1994) 27 Cal.App.4th 940, 944.)  Defendant’s complaints with counsel’s failure to present evidence did not credibly establish that appointment of a different attorney would have produced a more favorable verdict, gained defendant a new trial, or could have had any effect on the sentence imposed.  (People v. Washington, supra, at p. 944.)  Defense counsel may have legitimately determined that producing at trial the evidence mentioned by defendant would have been more harmful than helpful to his client’s cause.  (People v. Sharp, supra, 29 Cal.App.4th 1772, 1788.)  “We do not find Marsden error where complaints of counsel’s inadequacy involve tactical disagreements.”  (People v. Dickey (2005) 35 Cal.4th 884, 922.)  The conflict between defendant and counsel over the presentation of evidence at trial was a tactical disagreement, in the absence of evidence that indicates otherwise, and did not require substitution of counsel.  (Ibid.)  The facts that support a guilty finding often cannot be trumped by even the most skilled of defense counsel.

            Nor did defendant’s statement of grievances reveal such an irreconcilable conflict that ineffective representation was likely to result.  “The mere ‘ “lack of trust in, or inability to get along with,” ’ counsel is not sufficient grounds for substitution.  [Citation.]”  (People v. Taylor (2010) 48 Cal.4th 574, 600.)  Without a showing in the record of irreconcilable conflict or substantial impairment of defendant’s right to counsel, the Marsden motion after trial was properly denied.

B. Substitution of Counsel Associated with a Motion for New Trial.  

            The second facet of defendant’s claim of Marsden error focuses on his attorney’s pronouncement, following denial of the Marsden motion, that he did not perceive “any issues for a new trial motion,” and would be forced to “claim ineffective assistance of counsel.”[5]  We are not persuaded that counsel’s recognition and pronouncement of a potential conflict if a new trial motion was filed based on a claim of ineffective representation merited an additional Marsden inquiry under the circumstances.  From the prior inquiry, the court was aware of defendant’s specified causes of dissatisfaction with his attorney, sufficient to ascertain whether counsel was in fact rendering effective assistance.  Being alerted to a speculative future conflict of interest in the event a new trial motion was filed did not provide the trial court with a reason to immediately engage in another postconviction Marsden inquiry.  Thereafter, defendant did not file a motion for new trial or renew his request for substitution of counsel.  No Marsden error occurred.

People v. Borg -A129258- 4/2/12 CA1/1

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